Grantt v. Lape et al

Filing 51

MEMORANDUM-DECISION AND ORDER: ORDERED that Magistrate Judge Dancks' Report -Recommendation (Dkt. No. 49 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Plaintiff's motion for a temporary restraining order (Dkt. No. 44 ) is DENIED. ORDERED that Defendant's motion for summary judgment (Dkt. No. 31 ) is GRANTED. ORDERED that Plaintiff's Complaint (Dkt. No. 1 ) is DISMISSED. Signed by Judge Glenn T. Suddaby on 9/12/12. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
MARK W. GANTT,
Plaintiff,
9:10-CV-0083
(GTS/TWD)

v.
GARY MIELENZ, Commissary Clerk IV,
Coxsackie Corr. Facility;
Defendant.
_________________________________________
APPEARANCES:

OF COUNSEL:

MARK W. GANTT, 08-A-3883
Plaintiff, Pro Se
Collins Correctional Facility
Box 340
Collins, New York 14034
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendant
The Capitol
Albany, New York 12224

LAURA A. SPRAGUE, ESQ.
Assistant U.S. Attorney

GLENN T. SUDDABY, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Mark W.
Gantt (“Plaintiff”) against the above-captioned correctional employee (“Defendant”), are the
following: (1) Plaintiff’s motion for a temporary restraining order (Dkt. No. 44); (2) Defendant’s
motion for summary judgment (Dkt. No. 31); and (3) United States Magistrate Judge Therese
Wiley Dancks’ Report-Recommendation recommending that Plaintiff’s motion be denied and
Defendant's motion be granted (Dkt. No. 49). For the reasons set forth below, the ReportRecommendation is accepted and adopted in its entirety, Plaintiff’s motion is denied, and
Defendant’s motion is granted.

I.

RELEVANT BACKGROUND
On January 22, 2010, Plaintiff filed his Complaint in this action. (Dkt. No. 1.)

Generally, construed with the utmost of liberality, Plaintiff’s Complaint alleges that in
September 2009, while he was incarcerated at Coxsackie Correctional Facility (“Coxsackie”),
Defendant filed a misbehavior report against him (charging him with making a false statement)
in retaliation for Plaintiff’s having filed a grievance against Defendant for charging him $10.49
for a commissary purchase that he never made. (Id.) Plaintiff further alleges that he was found
guilty of the disciplinary charge at a disciplinary hearing, which resulted in the imposition of a
$5.00 fine and the loss of commissary privileges for 30 days. (Id.) Based on these factual
allegations, Plaintiff asserts the following two claims: (1) a First Amendment retaliation claim
against Defendant Mielenz for the grievance filing; and (2) a Fourteenth Amendment due
process claim against the (unnamed) hearing officer who presided over the disciplinary hearing.
(Id.)1 For a more detailed recitation of Plaintiff’s claims and the factual allegations supporting
those claims, the Court refers the reader to the Complaint in its entirety, and to Magistrate Judge
Dancks’ Report-Recommendation. (Dkt. Nos. 1, 49.)
On September 19, 2011, Defendant filed a motion for summary judgment. (Dkt. No. 31.)
Generally, in his motion, Defendant asserts the following three arguments: (1) based on the
current record, Plaintiff has failed to exhaust his available administrative remedies as a matter of
law; (2) in the alternative, Plaintiff has failed to allege facts plausibly suggesting either a
1

On August 11, 2010, more than 21 days after being served with a motion for
judgment on the pleadings, Plaintiff filed a one-page letter requesting leave to amend his
complaint to add the hearing officer as a Defendant. (Dkt. No. 15.) Defendants opposed that
request. (Dkt. No. 16.) On January 18, 2011, United States Magistrate Judge George H. Lowe
denied Plaintiff’s request without prejudice to renewal upon the filing of a procedurally proper
motion. (Dkt. No. 25.) However, Plaintiff did not subsequently move to amend his complaint.
(See generally Docket Sheet.)
2

retaliation claim or a due process claim, and has failed to adduce admissible record evidence
establishing a retaliation claim; and (3) based on the current record, Defendant is protected from
liability as a matter of law by the doctrine of qualified immunity. (Dkt. No. 31, at Parts I-III.)
Plaintiff opposes the motion through both a response and an untimely “supplemental response”
(which was accepted apparently out of special solicitude to Plaintiff as a pro se civil rights
litigant). (Dkt. Nos. 33, 40.)
On April 12, 2012, Plaintiff filed a motion for a temporary restraining order. (Dkt. No.
44.) Generally, Plaintiff’s motion seeks the following relief: (1) an Order of this Court
transferring him to a different correctional facility or (22) an Order of the Court restraining
Coxsackie correctional staff from future retaliatory acts. (Id.) Defendant opposes the motion.
(Dkt. No. 45.)
On July 31, 2012, Magistrate Judge Dancks issued a Report-Recommendation
recommending that Plaintiff’s motion for a temporary restraining order be denied and that
Defendant’s motion for summary judgment be granted. (Dkt. No. 49.) More specifically, with
respect to Plaintiff’s motion, Magistrate Judge Dancks found that Plaintiff failed to demonstrate
that the alleged ongoing retaliatory acts by correctional officers at Coxsackie Correctional
Facility are in any way related to the retaliation claim asserted against Defendant Mielenz
asserted in his Complaint. (Id. at Part II.B.) With respect to Defendant’s motion, Magistrate
Judge Dancks found that, while a triable issue of fact (barely) exists with regard to whether
Plaintiff failed to exhaust his administrative remedies, Defendant’s motion should nonetheless be
granted for the following two reasons: (1) because the receipt of a misbehavior report resulting
in a five-dollar fine and a 30-day loss of commissary privileges is considered only de minimus
punishment, Plaintiff failed to alleged facts plausibly suggesting sufficient adverse action to state
3

a retaliation claim; and (2) because inmates are granted post-deprivation remedies for the loss of
property under New York State law, Plaintiff’s due process claim also fails. (Id. at Part III.)
Neither party has filed an Objection to the Report-Recommendation, and the deadline by
which to do so has expired.
II.

APPLICABLE LEGAL STANDARDS
A.

Standard of Review Governing a Report-Recommendation

When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or
report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).2
When performing such a de novo review, “[t]he judge may . . . receive further evidence. . . .” 28
U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary
material that could have been, but was not, presented to the magistrate judge in the first
instance.3
2

See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
3

See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further
testimony when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (district court did not abuse its
4

When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition.4 Similarly, when an objection merely reiterates the same arguments made
by the objecting party in its original papers submitted to the magistrate judge, the Court subjects
that portion of the report-recommendation challenged by those arguments to only a clear error
review.5 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in

discretion in denying plaintiff's request to present additional testimony where plaintiff “offered
no justification for not offering the testimony at the hearing before the magistrate”); cf. U. S. v.
Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
district court to conduct a second hearing whenever either party objected to the magistrate's
credibility findings would largely frustrate the plain objective of Congress to alleviate the
increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary
evidentiary hearing is required.”).
4

See also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y.
Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.
1999).
5

See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.
Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
5

order to accept the recommendation.” Id.6
After conducting the appropriate review, the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1)(C).
B.

Standard of Review Governing Motions for Summary Judgment and
Motions to Dismiss

Magistrate Judge Dancks accurately recites the legal standard governing motions for
summary judgment and motions to dismiss. (Dkt. No. 49, at Part III.A.) As a result, these
standards are incorporated by reference in this Decision and Order, which (again) is intended
primarily for the review of the parties.
The Court would add only the following point of law. Implied in the above-stated
burden-shifting standard described in Part III.A.1. of the Report-Recommendation is the fact
that, where a nonmoving party willfully fails to adequately respond to a motion for summary
judgment, a district court has no duty to perform an independent review of the record to find
proof of a factual dispute–even if that nonmoving party is proceeding pro se.7 (This is because
the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has
received notice of the consequences of failing to properly respond to the motion for summary
judgment.)8 As has often been recognized by both the Supreme Court and Second Circuit, even

6

See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
7

Cusamano v. Sobek, 604 F. Supp.2d 416, 426 & n.2 (N.D.N.Y. 209) (Suddaby, J.)

(citing cases).
8

Cusamano, 604 F. Supp.2d at 426 & n.3 (citing cases).
6

pro se litigants must obey a district court's procedural rules.9 For this reason, this Court has
often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a moving party's statement to
have been admitted where the nonmoving party has willfully failed to properly respond to that
statement10–even where the nonmoving party was proceeding pro se in a civil rights case.11
However, even when this Court has declined to exercise its discretion to conduct a sua sponte
review of the record in search for a dispute of material fact, the Court will not turn a blind eye to
such a dispute, should it discover one during the review it conducts of the record to determine if
the movant has met his modest threshold burden.12
III.

ANALYSIS
Because Plaintiff did not submit an objection to the Report-Recommendation, the Court

reviews the Report-Recommendation only for clear error, as described in Section II.A of this
Decision and Order. After carefully reviewing the relevant filings in this action, the Court can
find no error in the Report-Recommendation. Magistrate Judge Dancks employed the proper
standards, accurately recited the facts, and reasonably applied the law to those facts. (Dkt. No.
34) As a result, Magistrate Judge Dancks’ Report-Recommendation recommending dismissal of
Plaintiff’s complaint is accepted and adopted in its entirety for the reasons stated therein. (Id.)
The Court would add only the following five brief points. First, Magistrate Judge
Dancks’ thorough and correct Report-Recommendation would survive even a de novo review.
9

Cusamano, 604 F. Supp.2d at 426-27 & n.4 (citing cases).

10

Among other things, Local Rule 7.1(a)(3) requires that the nonmoving party file a
response to the moving party's Statement of Material Facts, which admits or denies each of the
moving party's factual assertions in matching numbered paragraphs, and supports any denials
with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3).
11

Cusamano, 604 F. Supp.2d at 427 & n.6 (citing cases).

12

See, e.g., Goodson v. Artus, 09-CV-0494, 2012 WL 1037444, at *5 (N.D.N.Y.
March 27, 2012) (Suddaby, J.).
7

Second, Plaintiff has (despite having been given due notice and two opportunities to do
so) neglected to submit a response to Defendant’s Local Rule 7.1 Statement. For the reasons, the
Court deems admitted each of the factual assertions contained in Defendant’s Local Rule 7.1
Statement, which the Court finds to be supported by accurate record citations, with one
exception. See, supra, Part II.B. of this Decision and Order. That one exception is the factual
assertion contained in Paragraph 29, which the Court finds to be contradicted by his deposition
testimony stating that Defendant came to his cell holding the original version of Plaintiff’s
grievance (which the Court came across during the review it conducts of the record to determine
if Defendant has met his modest threshold burden on his motion).
Third, as to Magistrate Judge Danck’s (correct) finding regarding Defendant’s exhaustion
argument, there is, of course, a difference between the grievance Plaintiff attempted to file
regarding the underlying overcharge on his commissary account, and a grievance regarding the
subsequent retaliation and due process violation he is allegedly experienced due to Defendant’s
misbehavior report (and Plaintiff’s disciplinary hearing). However, the Court agrees that
Plaintiff’s deposition testimony (stating that Defendant came to his cell holding the original
version of the former grievance and screaming at Plaintiff) constitutes at least some admissible
record evidence from which a rational fact finder could conclude that it would have been futile to
even attempt to file the latter grievance (or to appeal from the non-filing of the first grievance).
Fourth, as to Magistrate Judge Danck’s (correct) finding regarding Defendant’s
retaliation claim, that claim is dismissed on the alternative ground that Plaintiff has failed to
adduce admissible evidence establishing the adverse action element of such a claim. The Court
notes that, while the second argument asserted in Defendant’s motion for summary judgment is
labeled “Plaintiff Has Failed to State a Claim,” that argument is premised not only on Fed. R.
Civ. P. 12(b)(6) but also on Fed. R. Civ. P. 56 as it relates to Plaintiff’s retaliation claim, due to
8

its reliance on citations to record evidence rather than the four corners of Plaintiff’s Complaint.
(Dkt. No. 31, Attach. 3, at 10-14 [attaching pages “8” through “12” of Def.’s Memo. of Law].)
Fifth, and finally, as to Magistrate Judge Danck’s (correct) finding regarding Plaintiff’s
due process claim, that claim is dismissed on the alternative ground that Plaintiff has failed to
adduce admissible evidence establishing, or even allege facts plausibly suggesting, that
Defendant was personally involved in any such due process violation, which allegedly occurred
because of the conduct of the disciplinary hearing officer. (See generally Dkt. No. 1, at ¶ 6.)
The Court would reach no different conclusion even if Defendant somehow controlled the
independent hearing officer’s use of the misbehavior report: just as an inmate possesses no due
process right to be free from being issued a false misbehavior report, an inmate possesses no due
process right to be free from having that false misbehavior report relied on by a hearing officer at
a disciplinary hearing.13
ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 49) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s motion for a temporary restraining order (Dkt. No. 44) is
DENIED; and it is further
ORDERED that Defendant’s motion for summary judgment (Dkt. No. 31) is
GRANTED; and it is further

13

See Freeman v. Rideout, 808 F.2d 949, 952-53 (2d Cir. 1986) (holding that an
inmate who was found guilty by a prison disciplinary committee based on a false report did not
have an actionable due process claim because the inmate was granted a hearing and the
opportunity to rebut the false charges against him); accord, Richardson v. Ray, No. 12-CV-6399,
2012 WL 3105224, at *1 (4th Cir. Aug. 1, 2012); see also Boddie v. Schneider, 105 F.3d 857,
862 (2d Cir. 1997); Velez v. Burge, No. 11-CV-2897, 2012 WL 1889402, at *1 (2d Cir. May 25,
2012).
9

ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED.
The Clerk’s Office is directed to enter judgment and close this action.
Dated: September 12, 2012
Syracuse, New York

10